Consumer Complaint No. 10 of 2015
Date of filing: 09.01.2015 Date of disposal: 03.10.2016
Complainant: M/s. Puspa Ago Udyog, Represented by its Proprietor Sri Samit Samanta, S/o. Sri Swapan Samanta, having address at Village: Haripur, Post Office: Balgona, District: Burdwan, PIN – 713 510.
-V E R S U S-
Opposite Party: 1. Bharat Machine Tools Industries, summons to be served through and represented by its Manager/Proprietor Sri Tapas Bose, having address at 61, Ganesh Chandra Avenue, Kolkata – 700 013.
2. M/s. L. K. Engineering Works, summons to be served through and represented by the Manager/Proprietor, having address at 8012/11, Multani Dhanda, Paharganj, New Delhi – 110 055.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Deb Krishna Sinha.
Appeared for the Opposite Party No. 1: Ld. Advocate, Subhojit Mondal.
Appeared for the Opposite Party No. 2: Ld. Advocate, Indrajit Biswas.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs have installed a defective paddy pulverizing manufacturing unit at his site.
The Complainant being an educated unemployed rural youth and finding no job decided to engage himself through self-employment with the help and assistant of his family members. In pursuance to the decision he approached the DIC, Burdwan to get an opportunity for self-employment under the PMEGP Scheme being a certified candidate for the same and submitted project report of paddy pulverizing manufacturing unit. The said project was finally allowed, bank loan sanctioned in favour of the Complainant by the concerned authority. In order to establish the project the Complainant obtained quotations and photos of a complete manufacturing unit from the OP-1. The OP-1 made an elaborate presentation about the unit. Being satisfied with the said presentation the Complainant placed an order for delivery of the unit/machineries. The OP-1 assured that complete machineries will be delivered within 7 days from the date of making payment. The Complainant on good faith placed the order and paid the entire amount on 12.12.2013 but the OP-1 delivered the machineries on 22.02.2014 after lapse of long three months, which was nothing but a sheer negligence and deficiency in service on the part of the OP-1. The OP-1 dispatched its staff and mechanic within 7 days from the date of delivery of the machine for installation the unit at the manufacturing site, but installation could not be done due to non-construction of pucca concrete foundation which actually took time for 22-25 days for turning into hard concrete capable to stand and bear the weight of the manufacturing unit. Thereafter the Complainant waited long two months for the OP-1 to come and erect the unit over the newly made foundation, but the said OP did not bother to pay any request made by the Complainant repeatedly, for which the Complainant finding no other alternative approached before the OP-2 for installation of the machineries, who demanded Rs. 15,000=00 for the said services. Under compulsion the Complainant deposited the aforesaid amount in the account of the OP-2 and upon receipt of the said payment the OP-2 sent its staff/mechanic from Delhi who on 04.07.2014 visited the site. The said mechanic could not start/activate the machineries due to inherent defect in the machineries supplied by the OP-1. The said mechanic stated that the main paddy chilka pulverize machine did not bear working capacity of 1500-1600 kgs per hour as per the order, rather of 600 kgs per hour. The other machineries supplied by the OP-1 were not also in accordance with the order placed by the Complainant. At the time of installation of the machineries the concerned mechanic replaced the shaft and pully of the chalna. The mechanic had clearly mentioned about the inherent defects in the machineries in his own hand writing. From the aforesaid facts it can safely be presumed that the OP-1 had adopted an unfair trade practice by not delivering the ordered materials. The mechanic returned back without starting any production from the said manufacturing unit. It is submitted by the Complainant that the proprietor of the OP-1 Mr. Tapas Bose after being chased continuously for a long period finally sent mechanics on 31.08.2014 who also failed totally in starting the machineries along with production therefrom. The mechanics on 31.08.2014 opined in writing specifically about inherent manufacturing defects of the machineries delivered by the OP-1. They also cautioned and gave warning that as the machineries were defective, hence any effort to run the machine will be dangerous. On 12.08.2014 an e-mail was sent to the Complainant by the representative of the OP-1. According to the Complainant the OP-1 has admitted the inherent defect in the machineries and the loss suffered by the Complainant in writing on 20.08.2014 and promised to replace the defective machineries and compensate the loss suffered by the Complainant. But unfortunately till filing of this complaint, the OP-1 has miserably failed to discharge it duty as per commitment. The Complainant issued a reminder dated 11.10.2014 to the OP-1 about his commitment made on 20.08.2014. The Complainant received a letter from the Ld. Advocate for the OP-1 dated 13.11.2014 and through that letter the Complainant came to know that the OP-1 sold the machineries at a higher price than the actual price. The said letter also revealed that the unit supplied to the Complainant was an old one and did not match with the specifications as per the order placed by him. After getting knowledge about the contents of the letter it was clear before the Complainant that the machine supplied by the OP-1 does not bear the capacity of 1500-1600 kgs per hour, rather capacity of 600 kgs per hour. Secondly several important parts and portions for a complete unit were not delivered. Thirdly, the OP-1 assembled the unit with inferior products of non-reputed companies. The Complainant had clearly mentioned and advised the OP-1 to install the machineries of reputed company. Therefore there were above-mentioned deviations in the machineries along with other goods and materials at the time of assembling the alleged complete unit. According to the Complainant the OP-1 & 2 with collusion and connivance with each other have supplied a defective manufacturing unit having inferior quality, for which the Complainant had to suffer and incur a huge loss as he could not generate money from the installed unit due to its non-production. Till date the installed unit is lying in idle condition from the date of its installation. The Complainant has mentioned that he used to incur loss to the tune of Rs. 3,200=00 towards electric charge and interest without realizing any result from the said unit. He was also apprehending that the raw materials purchased by him amounting to Rs. 9, 50,000=00, stored in the godown will be destroyed. The OP-1 will be solely responsible and liable in case of destruction of the stored raw materials. From the facts as stated above it will reveal that the OP-1 delivered a defective unit consisting of several machineries to the Complainant, not only that the said OP has also failed to provide service properly. The service which was provided by the OPs for curing the defect or replacement of the unit, the same was very much negligent. The OPs knowingly delivered a different manufacturing units consisting of machineries which were not chosen by the Complainant. As the machine was suffering from its inherent defects and old one, such supply upon taking the entire money from the Complainant can be termed as unfair trade practice along with deficiency in service. For this reason the Complainant is entitled to get either refund of the entire consideration money of Rs. 6, 81,450=00 along with interest thereon till realization or replacement of the defective machineries with a new and defect-free one. For such illegal acts of the OPs the Complainant could not start his production and for this reason he is losing profit from the said machine day by day. Due to this reason the Complainant is also entitled to get compensation to the tune of Rs.1, 00,000=00 along with the cost of damages and destruction of the raw materials, electric charges and other maintenance charges for Rs.10, 00,000=00 along with interest paid by him towards the loan account. The Complainant has also sought for litigation cost for Rs.10, 000=00.
After admission of the complaint notices were sent at the addresses of the OPs. Service was completed. The OP-2 had sent down a copy of its written version at the address of this ld. Forum through speed post, without giving a copy of the same to the Complainant. For this reason the written version filed by the OP-2 could not be accepted because as per settled law without providing a copy to the other side written version cannot be accepted. As the OP-1 inspite of receipt of the notice did not bother to appear before this Ld. Forum to contest the complaint, the Ld. Forum was pleased to fix the complaint ex parte against the OP-1. On 31.03.2015 the OP-1 appearing before this ld. Forum prayed for setting aside the ex parte order and was ready to file its written version. Upon considering the prayer this ld. Forum was pleased to allow the application of the OP-1 and the written version field by the OP-1 was accepted with cost of Rs. 500/- payable to the Consumer Legal Aid Account, Burdwan. In this way the ex parte order dated 13.02.2015 was set aside. Thereafter the Complainant adduced evidence and opportunities were also given to the OPs for adducing the same. As the cost as mentioned above was not paid by the OP-1, on 31.03.2015 the ld. Forum was pleased to fix another date for making payment of the said amount by the OP-1, but ultimately the OP-1 did not pay the cost amounting to Rs. 500=00 as per direction dated 31.03.2015 and for this reason on 05.08.2015 this ld. Forum by passing an order has set aside the order dated 31.03.2015 and order was made for hearing the complaint ex parte against the OP-1. Since then the complaint is running ex prate against the Ops. At the time of final argument none was present on behalf of the Ops, so we took up the hearing argument form the ld. Counsel of the Complainant and ex parte against the OPs.
We have carefully perused the petition of complaint; evidence adduced by the Complainant and several papers and documents a submitted by him in support of his contention and the reports filed by the Ld. Advocate Commissioner as well the Ld. Expert. It is seen by us that there are some admitted facts in the case in hand i.e. the Complainant is an educated unemployed youth, he obtained certificate in Prime Minister’s Employment Generation Programme, after getting such certificate he submitted a project report of paddy pulverizing manufacturing unit, the same was allowed, bank loan sanctioned in favour of the Complainant, he placed an order before the OP-1 for installation of paddy pulverizing manufacturing unit at his site, the Complainant paid the entire amount of Rs. 6,81,450=00 towards the cost of the said machine along with VAT and other taxes to the OP-1 on 12.12.2013, the OP-1 delivered the said machine to the Complainant on 22.02.2014, at that time the machine could not be installed because there was no formation of pucca concrete foundation, for formation of the same it took time for 20-25 days, thereafter lapse of two months the OP-1 installed the said unit at the site, after installation the machine could not be started due to its some defects, the Complainant was told by the OP-1 to make contact with the OP-2 for its necessary starting and production, accordingly the Complainant intimated the same to the OP-2 for providing service, the OP-2 demanded a sum of Rs.15,000=00 from the Complainant for such service, the said amount was duly paid by the Complainant to the OP-2, the said machine was under warranty for a period of one year from the date of its purchase, OP-2 sent its staff/mechanic from New Delhi, the mechanic visited the site and inspected the machine on 04.07.2014, the mechanic could not start /activate the machinery due to its inherent defect, the mechanic, namely, Upender Sahu had stated in writing that the capacity of the said machine is of 600 kgs/Hour, the Complainant placed an order for purchasing paddy chilka grinding pulverizer machine having working capacity of 1500-1600 kgs/Hour, the said mechanic replaced the shaft and pully of the chalna, it was also mentioned by the mechanic of the OP-2 that the machine is suffering from its manufacturing defects entirely, so it is not possible to get any production from the said machine, on 20.08.2014 by issuing a letter the OP-1 intimated the Complainant that it will make the questioned machine totally in OK condition with its production within one month from the date of this letter, in default the OP-1 will make payment bank interest along with a new defect-free machine, as the OP-1 did not comply with its own commitment the Complainant wrote a letter to the OP-1 on 11.10.2014 stating that if the commitment as made by the OP-1 on 20.08.2014 will not be complied within 15 days from the date of receipt of this letter he will take appropriate step, the letter dated 11.10.2014 was duly sent to the OP-1 through speed post, on 13.11.2014 the Ld. Counsel of the OP-1 sent a letter to the OP-2 stating that his client purchased one pulverized machine along with a shifter machine subject to payment of cost of Rs.1,50,000=00 and after purchasing the same the both tools were detected faulty and totally stopped for doing any work, in the said letter the OP-1 requested the OP-2 either to repair the said machine or replace the same as early as possible, the OP-2 was directed by the OP-1 to do the needful within 7 days from the date of receipt of the said letter otherwise the OP-1 will take legal action against the OP-2, the Complainant had to incur expenses towards electricity charge on the ground of installation of the said machine but no fruitful production was made from the said machine and for this reason he had to face financial loss and a crisis for a prolonged period due to defects in the machine, the Complainant purchased raw materials for production amounting to Rs.9,00,000=00 approximately, an Advocate Commissioner was appointed to inspect and examine the site and godown of the Complainant to measure the extent of damages of the purchased raw materials, Ld. Commissioner has submitted his report, an expert was also appointed to inspect and examine the machine, the ld. Expert has submitted his report, during inspection and examination of the machine by the Ld. Expert except the Complainant none was present inspite of receipt of notice. The allegation of the Complainant is that inspite of repeated written correspondences with the OP-1 from whom the machine was purchased by the him against payment of due consideration and though the OPs were repeatedly informed about the defects in the machine, the OPs did not take any proper step either to remove the defects from it or replace a new defect free one till filing of this complaint.
From the tax invoice issued by the OP-1 on 22.02.2014 it is evident that the machine which was supplied by the OP-1 having the following specifications i.e. (a) 1500-1600 kg./hour paddy chilka pulverize machine extra heavy duty motorized with 50 HP motor Kirlosker make 440 Volt three phase 50 cycle and Rail Pully belting attachment machine body M.S. fabricated Hooper system with cyclone stand machine blade steel complete with standard accessories for Rs.5,63,500=00 and (b) fabricating chalna machine separate by chilka and rice motorized extra heavy duty square type net steel structure all steel complete with standard accessories amounting to Rs.85,500=00 i.e. total cost of the said machine along with other machineries is of Rs.6,81,450=00 along with VAT @5% for Rs.32,450=00. Inspite of making of the entire payment to the OP-1 on 12.12.2013, the OP-1 delivered the machine after lapse of more than two months. But admittedly due to some laches on the part of the Complainant the machine could not be installed because there was no formation of pucca concrete foundation. After completion of the same OP-1 installed the machine at the site but failed to start the machine and it has been duly admitted by the OP-1 by issuing letter dated 20.08.2014 upon the Complainant that until and unless the machine will start the OP-1 shall carry the interest component as the Complainant was under obligation to make payment of interest along with the principle amount to the Bank from where he obtained loan. It was further committed by the OP-1 through the letter 20.08.2014 that the machine will be in OK condition within one month from the date of this letter. Therefore it is clear that since installation till 20.08.2014 the machine could not work due to its defects and for this reason no production was made and the Complainant had failed to generate any income through the machine. Admittedly, the Complainant after installation of the machine purchased raw materials to the tune of Rs. 9, 50,000=00 which was stored in his godown and the said purchase has duly been corroborated by the Complainant by adducing cogent documents. From the purchased voucher of the raw materials it is seen by us that within the period from 18.06.2014 to 02.07.2014 the Complainant purchased raw materials from different persons, namely, Anal Dey, Dipak Das, Samir Das, Babla Das, Raja Chowdhury and others. After getting intimation from the Complainant about the defects in the machine the OP-1 directed the Complainant to make contact with the OP-2 for examination and inspection of the said machine and it is for the first time the Complainant got knowledge that the OP-1 purchased the said machine from the OP-2 and sold the same to him. Though the machine was within the warranty period but why the Complainant was told by the OP-2 to make payment of Rs.15, 000=00 towards the charges for inspection and examination of the said machine and accordingly the Complainant paid the same to the OP-2 being helpless and one mechanic of the OP-2 inspected the questioned machine and after inspection it is written by the said mechanic that the machine does not have capacity of 1500-1600 kgs. per hour, it bears capacity of only 600 kgs. per hour. Therefore it is clear from the writing of the mechanic that instead of capacity to produce 1500-1600 kgs per hour the OP-1 supplied the machine having only the capacity of 600 kgs per hour inspite of taking the cost of the capacity of 1500-1600 kgs/Hour. Therefore, such supply at a lower capacity machine after taking the cost of the higher capacity machine, such business/supply/action of the OP-1 can easily be termed as unfair trade practice on its behalf. Inspite of receipt of a hefty amount from the Complainant subject to supply the machine, the same could not be started either by the OP-1 or the mechanic of the OP-2, but during this period the Complainant had to pay Rs.15, 000=00 as extra amount to the OP-2 for inspection and repairing cost. In respect of such payment we are of the view that as the machine was within the warranty period having its inherent defect, neither the OP-1 nor the OP-2 is entitled to demand any farthing for any inspection or repairing cost form the Complainant. Admittedly, no agreement was signed by and between the OP-2 and the Complainant. Agreement was signed by and between the OP-1 and the Complainant and the Complainant placed order before the OP-1. For the first time the Complainant came to learn that the OP-1 purchased the questioned machine from the OP-2 through an Advocate’s letter and the Complainant was requested by the OP-1 to contact with the OP-2 for necessary repairing and inspection of the questioned machine. Therefore, if any amount be payable for inspection charge or repairing cost the same should be borne by the OP-1, not by the Complainant.
As the defects could not be removed by the OPs the Complainant had to approach before this ld. Forum praying for certain reliefs along with making prayer for direction upon the OPs either to remove the defects from the machine or to replace the same with a new defect-free one. As per settled law as the defects in the goods cannot be adjudicated upon without any expert’s opinion, prayer was made by the Complainant for appointment of an expert before this ld. Forum and accordingly after allowing the said prayer one expert was appointed for inspection of the questioned machine after giving prior notice to the parties of inspection. Accordingly the expert gave notices to the OPs, as the OP-2 is residing at New Delhi; notice was issued by the Ld. Expert through post. The OP-1 put his endorsement on the margin of the notice issued by the ld. Expert along with the Complainant. Accordingly on 24.01.2016 the Ld. Expert inspected the said machine in presence of the Complainant as the OPs did not bother to be present on the said date at the inspection site. It has been held by the ld. Expert that the questioned machine installed by the OP-1 at the Complainant’s site is suffering from several inherent manufacturing defects. It is mentioned by the ld. Expert that until and unless the defects are removed or repaired production cannot be possible. The expert opinion reveals that since installation of the machine no production was made and the Complainant is facing pecuniary loss day by day, but though he is under obligation to make payment of due EMI along with interest to the Bank. But as there is no production, and income from the machine the Complainant could not pay due EMI along with interest to the Bank. The concerned Bank namely Allahabad Bank by issuing a notice requested the Complainant to make payment of the due amount along with interest within a specified period otherwise consequences will be faced by the Complainant.
As the report of the ld. Expert reveals that the questioned machine purchased and installed by the OP-1 is suffering from its inherent manufacturing defect and having not capacity of 1500-1600 kgs/Hour, the OP-1 is under obligation to remove the said defects from the said machine as early as possible and not only that the OP-1 is also under obligation to install another machine having capacity of 1500-1600 kgs/Hour at the said site after dismantling the installed machine.
During argument the ld. Counsel for the Complainant has fairly submitted that this complaint is very much maintainable within the territorial jurisdiction of this ld. Forum because the machine was installed at the site of the Complainant which is situated within the territorial jurisdiction of this ld. Forum and the defect cropped up in the said machine within the territorial jurisdiction. Therefore in view of the Section 11 (2) (c) the complaint is maintainable before this ld. Forum form the point of territorial jurisdiction.
Be it mentioned that on 22.05.2015 prayer was made by the Complainant for appointment of an Advocate Commissioner for inspection the godown and submit a report as to what extent the goods/raw materials in the godown got damage due to non-functioning of the questioned machine. Accordingly one Advocate Commissioner was appointed who inspected the concerned godown on 28.06.2015 at 9 a.m. and completed his work at 10.30 a.m. on the same date. In the report it is mentioned by the ld. Advocate Commissioner that there was near about 1250 quintal paddy husk. On 19.01.2015 the value of the said paddy husk was Rs.9, 62,500=00. According to the ld. Advocate Commissioner the paddy husk in the godown got total damage, not only that as the paddy husk became damage there are so many insects and the said ld. Advocate Commissioner collected some sample of the same. Therefore, it is clear from the report of the ld. Advocate Commissioner that the raw materials as purchased by the Complainant from different persons on different dates for production through the questioned machine but as the production could not be made due to inherent defects in the installed machine; the entire raw materials got damage. The Complainant has submitted several purchase vouchers from where it is evident that the Complainant purchased raw materials cost of Rs. 10, 60,181=00. Subsequently the Complainant prayed for a liberty from this ld. Forum to give permission for removal of the perishable raw materials which turned rotten. It is also mentioned in the report that on 19.01.2015 the value of the said item was of Rs.9, 62,500=00, but in the petition of complaint it is mentioned by the Complainant that due to defects in the machine the raw materials purchased by him cost of Rs.9, 50,000=00 got damage. The documents show that the Complainant purchased raw materials by making payment of Rs.10, 60,181=00. As during 2015 the cost of the said materials was at a lower side hence in our view it will met justice if we direct the OP-1 to make payment for a sum of Rs.9, 00,000=00 to the Complainant due to damage of the raw materials on the ground of deficiency in service as well as unfair trade practice on behalf of the OP-1.
As the OPs did not take any fruitful step for removal of defects or to replace the defective machine inspite of repeated requests made by the Complainant in writing and for this reason the Complainant had to face mental agony, financial loss etc. the OPs are under obligation to make payment of compensation to the Complainant. As the grievance of the Complainant have not been redressed by the OPs before approaching to the Court of Law and by filing this complaint the Complainant had to incur some expenses, hence the Complainant is also entitled to get litigation cost.
Going by the foregoing discussion, hence it is
O r d e r e d
that the complaint is allowed ex parte against the OP-1 with cost and dismissed against the OP-2 without any cost. The OP-1 shall refund a sum of Rs.15,000=00 to the Complainant as paid by the Complainant to the OP-2 for inspection of the questioned machine as the machine was under the warranty period, the OP-1 shall replace the lower capacity machine as installed by it i.e. capacity of 600 kgs/Hour with the capacity of 1500-1600 kgs/Hour at the said site, the OP-1 shall supply a new and defect-free machine to the Complainant and install the same at the site. The OP-1 are directed to comply with the above-mentioned directions within 45 days from the date of passing of this judgment, in default, the OP-1 shall refund the amount Rs.6,81,450=00 paid by the complainant at the time of purchase of the said machine and Rs.15,000=00 along with an interest @8% per annum from the date of making payment of the said amount till realization of the entire amount, in default, the above-mentioned total amount including interest shall carry penal interest @10% per annum. The OP-1 is hereby further directed to make payment a sum of Rs. 9, 00,000=00 to the complainant towards the amount of damaged raw materials on the ground of deficiency in service as well as unfair trade practice on its behalf to the complainant within a period of 45 days from the date of passing of this judgment, in default, the above-mentioned amount shall carry interest @8% per annum for the default period. The OP-1 is directed to pay compensation to the tune of Rs. 10,000=00 to the Complainant due to deficiency in service and for which the Complainant had to face mental pain, agony, harassment and financial loss and the OP-1 is also further directed to pay litigation cost to the tune of Rs. 3,000=00 to the Complainant within a period of 45 days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire decree in execution as per provisions of Law.
Let copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
